Oloja & Ors V. Gov, Benue State & Ors (2021)
LAWGLOBAL HUB Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.
The Appellants herein were the plaintiffs in the trial Court while the Respondents were the defendants/counter-claimants. In paragraph 30 of their further, further amended statement of claim, the Appellants as plaintiffs at the trial Court claimed jointly and severally against the Respondents as follows:-
a. Declaration that the policy of Benue State Government of disposing its quarters to civil/public servants, on owner occupier basis, which was later on extended to cover elected officers does not exclude the plaintiffs.
b. Declaration that the plaintiffs who are actual occupiers of their respective allocated quarter, who have indicated interest in buying the houses, should be given the first option to buy houses but any other interested person who is not in actual occupation thereof.
c. Declaration that the plaintiffs who are in actual occupation of their respective houses, who have applied and paid the application fees to buy the houses ought to have been formally informed that they (sic) applications were not approved and reasons thereof before putting out the houses to other intending buyers.
d. Declaration that the purported revocation of each of the plaintiffs, tenancy/notice to quit same and subsequent allocation to others who are not in occupation is inequitable, unjust, unfair and discriminatory against the plaintiffs, unconstitutional and same should be set aside.
e. Declaration that each of the plaintiffs having been legally allocated the various government quarters, as civil servants in Benue State, which they have indicated interest in purchasing is more qualified as an occupier to be given the first option of the same on owner occupier basis.
f. Declaration that the purported revocation of each of the plaintiffs, tenancy and quit notice on same as well as the subsequent allocation of the respective quarters being occupied by each of the plaintiffs to other person is contrary to the government’s policy to assign these houses on “owner occupier” basis is null and void and of no effect whatsoever.
g. Order of the Court setting aside the purported allocation of the houses occupied by the plaintiffs.
h. Order of perpetual injunction restraining the defendants, by themselves, agents, servants, by and through whomsoever, from doing anything, taking any action prejudicial to the interest of the plaintiffs, trespassing on the houses and or in any way and manner tampering with the peaceful occupation by the plaintiffs of the quarters they now occupy.
i. Order of specific performance against the defendants to complete the contract of assignment the houses which the plaintiffs now occupy by issuing to the plaintiffs, receipts of purchase covering the houses and pay back balance due to the plaintiffs from the entitlement of each of the plaintiffs and where the entitlements have been paid, allow the plaintiffs effect the payment of the purchase prices of the houses.
The facts as gleaned from the record of appeal is that the Appellants herein were allocated houses owned by the Benue State Government which they were occupying as tenants and paying rent. After the Appellants retired from service but before vacating the houses, the Benue State Government evolved a policy with effect from 11th September, 2006 to sell the houses to Civil Servants in the service of the Benue State Government. The guidelines for the allocation of the houses were contained in the Benue State Executive Council (EXCO) Conclusions.
Going by the guidelines, the Appellants still in occupation of the houses were not entitled and eligible to be allocated the houses on owner-occupier basis because some of them were in the service of the Federal Government and Local Governments while the policy covered only persons in the service of Benue State Government. Furthermore, they had retired at the time the policy took effect and were also in arrears of rent/economic rent contrary to the Guidelines.
The government made invitation to her civil servants to apply for the houses to be allocated to them on owner-occupier basis wherein the 23 Appellants also applied for same at which Government considered their applications and found them in default for noncompliance with the Guidelines and rejected same prompting the government to allocate the houses to qualified persons. Consequent upon the Appellants refusal to deliver up possession of the houses for the bona fide allottees to take over, the Respondents therefore decided to issue them quit notices to vacate the houses.
The Appellants herein instituted an action against the Respondents at the High Court of Justice, Benue State sitting at Makurdi. At the trial, both parties tendered exhibits and filed their respective addresses in support of their case.
The trial Court in its judgment delivered on the 23rd September, 2010 dismissed the Appellants claim and granted the Respondents counter-claim for possession and rent arrears/mesne profits.
Dissatisfied with the judgment of the trial Court the Appellants filed a notice of appeal containing two grounds of appeal to the Court of Appeal, Makurdi Division. The lower Court heard the appeal and in its judgment delivered on 25/3/2015 dismissed the appeal and affirmed the decision of the trial Court.
The Appellants were dissatisfied with the judgment of the Court of Appeal and filed an appeal to this Court.
The Appellants’ brief of argument was filed on the 2/12/2018 while the Respondents brief of argument was filed on the 18/5/2018.
The parties adopted and relied on their respective brief of argument at the hearing of the appeal on 13/12/2020.
From the two (2) grounds of appeal, the following two (2) issues are distilled for determination:-
- Whether the learned Justices of the Court of Appeal were right in holding that the appellants who were in actual occupation of the houses in question were not entitled to benefit from the Benue State Owner Occupier Housing Scheme because they were retired civil servants who were owing rents in the circumstances of this case. This issue is formulated from ground one of the grounds appeal.
- Whether the learned Justices of the Court of Appeal were right when they held that the rights of the appellants were not violated to warrant a remedy given the circumstances of this case. This issue is derived from ground two of the grounds of appeal.
The Respondent herein adopted the issues for determination as raised in the Appellant’s amended brief of argument.
APPELLANTS SUBMISSION
Arguing on issue 1 and 2, learned counsel for the Appellants submitted that the Respondents made the appellants to believe that as civil servants who were allocated the various quarters for occupation and which they were in actual occupation at the time the scheme was executed were meant to benefit from the scheme. He added that the contention by the Respondents that the appellants being retired civil/public servants were not contemplated to benefit from the scheme is most bizarre, not proper, misleading and not sustainable.
It was further submitted that appellants are in the circumstances of this case qualified to benefit from the scheme because they fall within the class of persons for which the scheme was designed in the first place and the appellants also satisfied all the conditions for the purpose of taking benefits of the scheme else the Respondent wouldn’t have allowed the Appellants purchase the form and even complete the filling of the forms.
It was further submitted that where a party by his conduct, or words intentionally caused or permitted another person to believe a thing to be true and to act upon such belief shall not be allowed to deny the truth of that thing. He placed reliance on AWONUSI V. AWONUSI (2007) 1 ALL FWLR (PT. 391) 1642 at 1659 paras F- H.
RESPONDENTS SUBMISSION
Dwelling on their issues 1 and 2, learned counsel for the Respondents submitted that Paragraph 48 (ii) (b), (c), (e) and (f) of the policy guidelines refer to the beneficiaries or persons entitled to purchase the houses under the policy as State Civil/Public Servants. He added that Mozley & Whitley’s Law Dictionary 9th Edition, 1977 by John B. Saunders, page 61 defines Civil Service to include all servants of the crown (the State) other than holders of political or Judicial offices, who are employed in a civil capacity and whose remuneration is paid wholly and directly out of monies voted by parliament which means that persons employed to serve in such capacity are therefore Civil Servants.
It was further submitted that in the Appellants sworn statements and evidence under cross-examination, the Appellants conceded that they were in rent arrears and had retired before 11th September, 2006 when the housing policy took effect. He added that the appellants were no longer in the Civil Service as they were/are not entitled to be paid salaries and other allowances payable to persons who are still in service.
It was argued that the Appellants were in occupation of the houses at the time the policy took effect but the issue was that all the Appellants had retired and so even though some of them had been allocated the houses as tenants and were in occupation, they were not eligible to be allowed the option to buy same including the benefit under paragraph 4 B. (ii) (D) of exhibit RI which also does not enure the Appellants.
While relying on the case of INCAR NIG PLC & 1 Or vs. BOLEX ENTERPRISES NIG LTD (2001) 6 NSCQR (Pt. II) 692 at 721, it was submitted that there were no valid contracts between the Respondents and the Appellants thereby estopping the Appellants from suing the Respondents for the breach of non- existent contracts.
It was further submitted that for there to be a contract, there must be an offer from one party capable of acceptance by the other and when consideration is provided on the offer and same is accepted, a contract comes into existence. On this, he citedEDILCO NIG. LTD vs. UBA PLC (2000) FWLR (Pt. 21) 792 at 834.
It was therefore urged on this Court not to disturb the decision of the trial Court and the Court below but dismiss the appeal on the grounds that it is frivolous, vexatious and the reliefs sought in the Appellants brief are not stated in the notice of appeal and so not grantable.
RESOLUTION OF ISSUES
As earlier stated, the Appellants formulated two issues for determination in their brief of argument and the Respondents also adopted the same issues in their own brief of argument. I am minded to rely on the aforestated issues to determine this appeal.
I must however, state that while I commend the intellectual input of learned counsel for the parties in their respective briefs of argument, all in a bid to sway the mind of this Court in their favour, I also observed that the issues in contention are quite narrow no matter the perspective from which they are viewed.
Some salient facts need to be reiterated and which facts are, from the records, not in dispute but reflect the correct state of affairs in the transaction between the parties. These facts are, that the Appellants (while variously in the service of the Benue State Government, Local Governments of Benue State and Federal Government of Nigeria) were allocated houses belonging to the Benue State government and which houses they each occupied as rent paying tenants. The Appellants subsequently at various dates retired from service while still occupying the houses and before they could vacate same, the Benue State Government introduced a policy with effect from the 11th day of September, 2006, wherein such houses are to be sold to Civil Servants still in the service of Benue State Government. The guideline for the allocation of the houses to deserving and qualified persons is contained in the Benue State Executive Council Conclusion (Exco Conclusions) which was tendered in evidence in the trial Court and admitted as Exhibit R1.
Paragraph 4B (iii) (b) (c) (g) and (i) of the said guidelines (Exhibit RI) specified in very clear and unequivocal terms the categories of persons qualified to apply for the sale of the houses to them. The said paragraphs are herein below set out:-
4B(iii) “Guidelines for the sale of government quarters under conditions highlighted below: –
(b) That all State Public/Civil Servants who are currently occupying government residential quarters, and had evidence of genuine allocation papers would be allowed the option to buy such quarters as a matter of priority;
(c) Nonetheless, State public/civil services found to be in arrears of rent payments, must as a precondition off-set such ascertained outstanding arrears before they will be eligible for purchase of the houses they occupy;
(g) That houses presently occupied by Federal Government officers serving in the State as well as Local Government staffer shall be re-allocated to deserving State public/civil servants who are the targeted prime beneficiaries.
(i) That such officers (especially from the Federal and Local Government services) occupying State Government Quarters, but nonetheless not eligible for participation in the scheme would be allowed a period of grace of (3) three months to find alternative accommodation and thereafter surrender such quarters.”
What I can glean from the above set out guidelines and conditions for allocation of the affected Benue State Government quarters and which view represents every rational and objective analysis, is that the primary and sole beneficiaries of the sale are public/civil servants still in the service of the Benue State Government.
Paragraph 4(iii)(b) made it very clear that only State public/civil servants currently occupying government residential quarters are entitled to be considered for allocation. That is not all. They must also show evidence of genuine allocation paper to ascertain the authenticity of their occupation in those quarters.
Paragraph 4(B)(iii) (c) further insists that such State public/civil servants who are in arrears of rents in the quarters they occupy must clear their outstanding rents as a pre-condition for their eligibility for purchase of the houses they occupy.
Federal and Local Government staffers presently occupying the quarters slated for such sales were given three months to vacate and surrender their quarters, which will be re-allocated to deserving Benue State Public/Civil servants who are the targeted beneficiaries.
Good enough, the Appellants are not challenging the genuineness or existence of Exhibit R1. Their first complaint is that having been in occupation of the affected quarters while still serving in the government of Benue State as public/civil servants and having continued with occupation therein as rent paying tenants after their retirement from service, they are entitled to be allowed the option to purchase those houses without discrimination as to whether serving or retired. In other words, that there is no difference between a serving civil servant and one that is retired from civil service and which distinction was nowhere drawn in the guideline (Exhibit RI).
The learned trial Judge adequately addressed the issue in the judgment at pages 712 to 713 of the record wherein he held as follows:-
“Now, the Oxford Advanced Learner’s Dictionary, 7th Edition at page 255 defines civil servant’ to mean “a person who works in the civil service” and at page 1249 it defines “retired” as “having retired from work” and the same page defines “retiree” as “a person who has stopped working …”The Black’s Law Dictionary 7th Edition does not define civil servant but it defines “RETIREMENT” at page 1317 to mean “voluntary termination of one’s own employment or career especially upon reaching a certain age.” If civil servant means a person who “works” then a person who is retiree or who has “stopped working” cannot be a civil servant. The reason is that, ‘works’ is a noun. It connotes a continuing act and does not contemplate an act that took place in the past. I hold therefore that “civil servant” does not mean the same thing as “retired civil servant.” That there is a difference between a serving civil servant and a retired civil servant is established by the evidence of PWI. Hear him under cross-examination:
“Where his gratuity is not fully paid, the retired civil servant has an obligation to continue paying economic rent. The rent he pays is not the same with the rent he paid while he was in service. The economic rent he pays is lower than the amount he paid as rent while in service”.
That invariably means, “civil/public servant” as used in paragraph 4 B (iii) (b) of Exhibit R1 does not include the plaintiffs as the category of persons entitled to benefit from the owner occupier scheme. It does not matter that they were not specifically signed out as the Federal and Local Government staff were to be excluded from the scheme.
Exhibit R2 which is not disputed shows that while the 1st plaintiff retired in October, 2004, the 2nd, 3rd, 11th 16th, and 18th plaintiffs retired in 2005, 4th and 5th plaintiffs retired in 2002, 7th and 20th plaintiffs retired in 2001, 19th plaintiff retired in 1999, 22nd plaintiff retired in 2003, the 10th, 12th, 13th, 6th 9th, and 14th plaintiffs retired in January, February, March and April, 2006 as the case may be.
Therefore, whether the owner occupier scheme commenced in July or September 2006, all the plaintiffs had retired from service before the inception of the policy.”
The above set out findings of the learned trial Judge no doubt hit the nail on the head with respect to the status of the Appellants vis-a-vis the guideline for the sale of Benue State Government houses to its public/civil servants. I endorse the said findings to the effect that from the clear provisions of paragraph 4B (iii) (b) of Exhibit R1, the Appellants who do not deny the fact that they are retired civil/public servants do not come within the category of persons entitled to benefit from the owner occupier housing scheme as envisaged by the Government of Benue State.
For purposes of emphasis, record of proceedings at the trial Court show that all the Appellants retired from service before the commencement of the Benue State Government owner occupier housing policy as approved by Exhibit R1 in September, 2006. Their testimonies at the trial Court gave credence to this fact which though not in dispute was also conceded to in paragraphs 3.6, 3.8, 3.9 and 3.11 of the Appellants brief of argument. Added to this is the content of Exhibit R2 which is a document showing the various dates the Appellants retired from service with the most recent being April, 2006. That is to say, that they all retired from service before the Government policy to sell its residential quarters to serving public/civil servants came into effect.
To further strengthen the point being made that the Appellants, as retired public/civil servant do not fall within the category of beneficiaries of the policy even though they were still in occupation of the quarters as rent paying tenants. Exhibit R3 dated 30/3/2000 clearly detailed the status of the Appellants as it related to the subject matter in dispute and the fact that retired civil servants fall outside the scope of intended beneficiaries of the Owner Occupier Housing Scheme. For clarity purposes. I herein below reproduce its content. It reads:-
NEW CONDITIONS FOR CONTINUED STAY IN GOVERNMENT QUARTERS BY RETIRED PUBLIC/CIVIL SERVANTS
A phenomenon has come about in Benue State public/civil service, whereby-retired public/civil servants continue to stay in government residential quarters their retirement. The reason often given for such continued occupation of government quarters by the retirees include: –
(i) Non-payment of their retirement benefits, especially gratuity, and
(ii) Non-completion of payment of their retirement benefits.
- In some cases, even those public servants whose retirement benefits have been fully paid or those who have been dismissed still cling to government quarters using flimsy excuses which border on hollow sentiments. This situation leads to loss of government revenue as such occupants stay in the quarters without paying any rent for upward of 1 to 5 years. It also deprives other needy serving civil servants of access to the government quarters which ought to have been vacated by those who have left the service.
- The reasons (as listed in paragraph 1 above) which are often adduced to justify the continued stay in government quarters by retired public/civil servants are hardly tenable. It has to be re-emphasized that after three (3) calendar months from the date of retirement, Government no longer has any obligation in the realm of residential accommodation to any public/civil servant who retires from the service whether the retirement benefits have been paid or not. The same applies to the family of deceased officials.”
Reading the content of Exhibits R2 and R3 together, in addition to the clear cut evidence of PW1 at the trial gives credence to the irrebuttable conclusion that the Appellants ought to have vacated their residential quarters which were allocated to them by the Benue State government as serving public/civil servants as rent paying tenants before the Owner Occupier Housing Policy was introduced in September, 2006.
This bring me to the argument by learned counsel for the Appellants wherein he concluded in paragraph 4.1 at page 25 as follows:-
- The scheme was designed for the benefit of civil/public servants of Benue State including the Appellants hence the caption OWNER OCCUPIER HOUSING SCHEME. See also clause B(iii) (d) of Exhibit RI.
- The programme took off before the Appellants retired and it was the full implementation of the scheme that was carried out after the retirement of the Appellants.
- The term civil/public servants used in clause B(iii) (b) of Exhibit R1 does not exclude the Appellants. If the Appellants were meant to be excluded, this would have been clearly stated and it is wrong to read into the clause what is not therein just like the word “serving civil/public servants” was not used in the clause B (iii) (b) of Exhibit R1 so also is the word “retired civil/public servant was not used. It is therefore, wrong to read into the document what is not there. The importation of the word serving civil/public servants” in the defence of the Respondents was deliberate and for their attempt to justify their wrongful and discriminatory treatment of the appellants and this Court is urged not to allow this injustice against the Appellants in the interest of justice.”
The answer to the above set out contention by the learned counsel for the Appellants has already been given in the earlier part of this judgment wherein I reproduced and wholly endorsed a portion of the judgment of the trial Court where the legal and dictionary meaning of the words, civil servant, Retiree, Retired, and Retirement were defined and distinguished with the conclusion that a civil servant does not mean the same thing as a retired civil servant as also clearly demonstrated by the evidence of PW1. Further, the content of Exhibits R2 and R3 are enough proof to show that Exhibit R1 does not intend to include the Appellants in the owner occupier housing policy that evolved in September, 2006.
The extensive and exhaustive argument presented by the Appellants counsel in a bid to sway the mind of this Court is quite commendable, but unfortunately it is like trying to convince someone that the sun and moon are the same. They are not, they have their peculiar characteristics and attributes.
Both parties had also argued strenuously on the issue whether the Appellants were not disqualified from benefitting from the Owner Occupier Housing Scheme by virtue of clause 4B (iii) (c) which prescribed that State civil/public servants found to be in arrears of rent payments must as a precondition off-set such ascertained outstanding arrears, before they will be eligible for purchase of the houses they occupied. To my mind, pursuing such line of argument whether or not the Appellants were owing arrears of rent does not arise and amounts to flogging a dead horse in a bid to rouse it for an urgent trip. By the provisions of paragraph 4B (iii) (b) of Exhibit R1 and further supported by Exhibits R2 and R3, the Appellants ab initio fall outside the category of persons intended by the Benue State Government to benefit from the Owner Occupier Housing Scheme introduced in September, 2006.
Be it known by way of reiteration that where the language, words and terms used in any section, paragraphs of a document, contract, or enactment are clear and unambiguous as in Exhibit R1 they must be given their ordinary and actual meaning as such words or terms used declares and describes the true intent of the makers of such document, enactment or contract. A departure from this principle of interpretation is only permissible where such terms, words or expressions will lead to absurdity or in conflict with other provisions thereof. See EFFIONG VS IKPEME (1999) 6 NWLR (PT.606) 260, AMIZU VS NZERIBE (1989) 4 NWLR (PT.118) 755; ODUYE VS NIGERIA AIRWAYS LTD (1987) 2 NWLR (PTS5) 126; UNION BANK OF NIGERIA LTD VS SAX (NIG) LTD & ORS (1994) 9 SCNJ page 1, or (1994) 8 NWLR (PT. 361) 1.50; IHUNWO VS IHUNWO & ORS (2013) 8 NWLR (PT. 1357) 550.
On the 2nd issue raised by the parties in their briefs of argument, whether the lower Court rightly held that the Appellants’ rights were not violated to warrant a remedy in the circumstance of the case. The latin maxim Ubi jus Ibi remedium (where there is a wrong there is a remedy) easily comes into play here, and that takes me to relief (i) claimed by the Appellants in paragraph 30 of their further, further statement of claim relied upon at the trial. It reads:-
“(i) Order of specific performance against the defendants to complete the contract of assignment of the houses which the plaintiffs now occupy by issuing to the plaintiffs receipts of purchase covering the houses and pay back balance due to the plaintiffs from the entitlement of each of the plaintiffs and where the entitlements have been paid, allow the plaintiffs effect payment of the purchase prices of the houses.”
Now a decree of specific performance is a form of relief that is purely equitable in nature and the fundamental rule is that specific performance will not be ordered if there is an absolute remedy at law in answer to the plaintiffs claim, that is to say, where the plaintiffs would be adequately compensated by the common law remedy of damages. See GAJI VS PAYE (2003) 7 SCM 55; AFROTEC TECHNICAL SERVICES (NIG) LTD VS MIA & SONS LTD & ANOR (2000) 15 NWLR (PT.672) 730.
An order for specific performance as an equitable remedy can only be granted to a successful litigant constraining the party at fault to carry out the agreement which it had entered into with the successful litigant. Like all equitable remedies, it is at the discretion of the Court but such discretion must be exercised judicially according to settled rules and principles. Put in another way, there can be no order for specific performance unless there is a definite and certain contract between the parties to the suit before the Court.
See BEST (NIG) LTD VS BLACKWOOD HODGE (NIG) LTD & 2 ORS (2011) 1-2 SC (PT 1) 55; NLEWEDIM VS UDUMA (1995) 6 SCNJ 72; HELP (NIG) LTD VS SILVER ANCHOR (NIG) LTD (2006) 2 SCNJ 178.
In the instant case, it bears no further explanation that in whatever manner it is approached, there is no contract between the Appellants and the Respondents for the sale or purchase of the Residential quarters they presently occupy having regard to the content of Exhibit R1.
To constitute a binding contract, there must be an agreement in which the parties are ad idem on essential terms and conditions thereof. The promise of each party must be supported by consideration. See BEST (NIG) LTD VS BLACKWOOD HODGE (NIG) LTD & ORS (Supra). In other words, for an enforceable contract to materialize between parties, there must co-exist a precise offer, an unqualified acceptance and a legal consideration with the intent to create a legal relationship.
The hallmark of a valid contract is consensus ad idem, the meeting of minds by the parties concerned.
By their own oral and documentary evidence presented before the trial Court, the Appellants only responded to paragraph 4B(iii) (a) of Exhibit R1 which required all intending persons who wish to participate in the scheme to purchase an application Form at a fee of N500 and subsequently to pay a processing fee of N2,500.
According to them, the application forms were purchased, filled and returned but nothing further was done between them and the Respondents with regard to other terms and conditions specified in Exhibit R1. The only news they got thereafter was that their residential quarters have been reallocated to some other persons.
That is to say, apart from the general invitation made to persons who wish to participate in the housing scheme to purchase an application form at the rate of N500, the Respondents never had anything to do with the Appellants again as far as the process of purchase of the houses was concerned.
The lower Court captured the scenario properly and made a correct finding thereon as detailed in pages 1010 to 1012 of the Record as follows:-
“There is no gainsaying the fact that the parties were not consensual on the existence of the contract of allocation of the houses to the appellants. Whereas, the appellants owned the view that there was, the respondents too an antithetical stance. For a balanced resolution of this stubborn point, I have juxtaposed their cases with the necessary elements of contract x-rayed above. To start with, did the appellants’ applications, cocooned in Exhibits R6-R28, qualify as an offer? I have my doubts. My doubts are concretised by the ingredients of binding contract displayed above. Those applications, being housed in Exhibits R6- R28, constitute a mere declaration of their willingness to enter into negotiation which will metamorphose into an enforceable contract, see Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (Supra). They can only qualify as invitations, to treat. An invitation to treat is merely a preliminary move in negotiations which may result into a contract. It is a phenomenon that is incapable of an acceptance that will lead to a contract. See I. E. Sagay, Nigerian Law of Contract (Ibadan: Spectrum Books Ltd., second Edition, 2000) page 14; Carbolic Smoke Ball Con v. Carlill (1893) 1 O. B. 256. In order words, an invitation to treat is aforerunner to the formation of a valid contract which is usually ushered in by an offer. Being an initial contractual step, it is not amenable to acceptance by another party. It cannot form the basis of a cause of action. See Neka B. B. B. Mfg. Co. Ltd. v. A.C.B. Ltd. (Supra). Thus, in so far as the appellants’ applications resided in the wide realm of an invitation to treat, they were, in the sight of the law, disobedient to acceptance, by the respondents, and, de jure impotent to give birth to their cause of action. Alas, each of those exhibits was anudum poctum in relation to the contract.”
I agree with and endorse the above set out finding of the lower Court as representing the correct position in the law of contract. As was rightly held by this Court in BFI GROUP CORPORATION VS BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (PT.1322) 209. An offer must be distinguished from an invitation to treat.
An invitation to treat is the first step in negotiations between the parties to a contract.
It may or may not lead to a definite offer being made by one of the parties to the negotiation. An invitation to treat is not an offer that can be accepted to lead to an agreement or contract. See also BPS CONSTRUCTION & ENGINEERING Co. LTD VS FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2017) LPELR-42516 (SC). An invitation to treat is not an offer capable of acceptance that will result in a contract with a legal relationship between the parties. It is merely a communication by which a party is invited to make an offer. It is thus different from an offer mainly on the ground that it is not made with the intention that it will create a binding relationship as soon as the person to whom it is addressed responds to the invitation as in the instant case where the Appellant in response to paragraph 4B (iii) (a) of Exhibit R1 took steps to purchase the forms for the sale of the house. The said purchase, filling and return of the forms Exhibits R6 to R28 does not create any legal relationship or a binding contract between the parties that will justify a positive response by this Court to the Appellants prayer for an order for specific performance.
The necessary ingredients to trigger up the power of this Court in doing so is totally lacking in this case and I have no hesitation in answering issue two in the Appellants’ brief of argument in the affirmative to the effect that the lower Court was right to hold that the rights of the Appellants were not violated to warrant a remedy in the circumstance of the case.
On this premise, I find the appeal to be lacking in merit and it is hereby dismissed.
Appeal Dismissed.
Parties to bear their costs.
SC.299/2015
